Frequently, there will be a period of time between the date on which a local planning authority (LPA) resolves to grant planning permission and the date on which the planning officer issues the decision notice. (It is, of course, the latter that constitutes the grant of planning permission.) During that interval, there is always the possibility that a material change in circumstances may come about. Given the duty of an LPA under section 70(2) of the Town and Country Planning Act to have regard, in determining a planning application, not only to the development plan but also to “any other material considerations” such a material change in circumstances cannot simply be ignored.
In R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 130; [2002] 4 PLR 66 the Court of Appeal stated that in such event the planning officer must refer the matter back to the planning committee. This is because the statutory duty under section 70(2) extends beyond the resolution stage, and includes administrative acts subsequently done by the planning officer.
In R (on the application of Gibson) v Waverley Borough Council [2012] EWHC 1472 (Admin) the claimant applied to quash a decision by the LPA to grant planning permission and listed building consent for the conversion of a Grade II listed house into a terrace of three houses, together with the erection of a new wing to provide five new townhouses. (The permitted use of the house at the time was use as a hotel.) The resolution was made on 9 June 2010 and the decision notice was issued on 14th September.
However, on 2 August 2010 the LPA also granted planning permission to a third party for a change of use of the building from use as a hotel back to use as a single dwellinghouse. The claimant contended that the grant of this planning permission was a new material consideration to which the LPA should have had regard.
The court upheld that argument and quashed the decisions to grant planning permission and listed building consent for the earlier conversion and new build scheme, holding that they were legally flawed. The planning permission granted to the third party was a new material consideration impacting in particular on what was the optimum viable use for a heritage asset.
John Martin is a freelance writer
